Leave Scalia’s Chair Vacant

It is a measure of the stature and the significance of Justice Antonin Scalia that, upon the news of his death at a hunting lodge in Texas, Washington was instantly caught up in an unseemly quarrel over who would succeed him.

But no one can replace Justice Scalia.

He was a giant among jurists. For a third of a century, he led the conservative wing of the high court, creating a new school of judicial thought called “originalism.”

But originalism is not conservatism, which, in the judicial era that preceded Scalia, often meant court decisions that “conserved” the radical social revolution Earl Warren’s court had imposed upon us.

Scalia believed in going back to the founding documents of the republic and discerning from them the original meaning and intent of the framers.

He would look at the purpose of the authors of the Constitution, the Bill of Rights and post-Civil War amendments, and conclude that it was an absurdity to discover there, or read into them, a constitutional right to have an abortion or to marry someone of the same sex.

The words Scalia used to ridicule such nonsense did as much to discredit majority opinions as did his dissenting votes.

I remember being called into the office of White House Chief of Staff Don Regan, 30 years ago, to be informed that the judge whom Ronald Reagan would name to replace William Rehnquist, who had been named Chief Justice, would be U.S. Appellate Court Judge Antonin Scalia.

Regan was grinning at me as he made the announcement, and I let out of a whoop of victory. Since Nixon days, some of us had argued for naming an Italian Catholic to the high court. Yet, all six of Nixon’s nominees, and the only nominee of Gerald Ford, were WASPs.

Scalia’s death removes the court’s most brilliant mind and most colorful member. Personable, witty, acerbic, a fine writer, he used his opinions, mostly dissents, not only to make his case but to skewer the majority opinion.

And while Sen. Mitch McConnell may be faulted for not waiting a decent interval after Scalia’s death to declare that the Senate will not confirm any Obama nominee to succeed Scalia, the majority leader’s position is exactly the right one for the party.

Some of us in the Nixon campaign of 1968 still recall how Chief Justice Earl Warren, fearing his old antagonist Richard Nixon might be elected, offered his resignation to LBJ in June of 1968, but contingent on Senate confirmation of a successor.

The fix was in.

Johnson nominated Justice Abe Fortas, a crony, to succeed Warren and Judge Homer Thornberry of Texas, another crony, to fill the Fortas seat. Nixon, urged by his old friend William Rogers, Ike’s attorney general, stayed out of the battle. Some of us did not.

Senate Republicans, led by Bob Griffin of Michigan and including John Tower, Howard Baker and Strom Thurmond, held up the vote on Fortas, until they had enough support to sustain a filibuster and run out the clock. In October, Fortas threw in the towel.

The following spring, President Nixon named U.S. Appellate Court Judge Warren Burger to succeed Earl Warren as chief justice.

The GOP Senate majority should follow the example of that gutsy Senate Republican minority of half a century ago. The window for any Supreme Court nominees should be slammed shut — until 2017.

Republicans should tell our “transformative” president that his days of transforming America are over, that he will not be remaking the court into a bastion of the left after his departure, and that, while he has the right to nominate whom he wishes, the U.S. Senate will exercise its right to reject any nominee he sends up. If the court will then face many 4-4 decisions for the next year, so be it.

Given the divisions on the court and balance of power, and the disposition of liberal justices to impose upon the nation an ideology that would never be embraced democratically, the Republican Party is almost duty-bound to oppose any Obama nominee.

What kind of Supreme Court do the American people wish to have? That is a question to be decided in 2016 — not by a lame-duck president, but by the American electorate in November.

Does the nation want an activist judiciary to remake America into a more liberal society, as Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor would like to see it remade?

Or do the American people want a more constitutional court that returns power to the people and their elected representatives?

Let’s have it out.

Republicans should tell the American people that when they vote in November they will be deciding not only the next president, not only which party shall control Congress, they will be deciding what kind of Supreme Court their country should have. Which is as it should be.

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63 Responses to Leave Scalia’s Chair Vacant

“Although the Court has as yet shown only one limited sign of reconsidering its deed in the Slaughter-House Cases [in Saenz v. Roe], one should not rule out the possibility that courts and lawyers, growing weary of the heavily encumbered and often sputtering vehicles of due process and equal protection, might begin to turn with growing frequency to the still shadowy Privileges or Immunities Clause not only for a rhetorical lift . . . but for a fresh source of distinctly personal rights.”

Not filling the chair just because it is the final year of the POTUS’ term is a dangerous precedent to demand. What happens when President Trump and Vice President Alex Jones aren’t allowed to nominate one in his final year in the White House?

This is utter nonsense and I doubt that Pat would recommend a similar path of there were a Republican in office. He would come up with some other mental gymnastics to justify filling the seat if it were a Republican President. Scalia’s originalism would not allow for such latitude in creating a reason not to follow the Constitution with respect to filling the seat. Had the roles been reversed, it would irk me too that the opposition was able to place a long term impact in the final year of office, but them is the breaks. Republicans have become so petulantly selfish that they are not only not fit to lead government, but barely fit to participate in it. Would not have expected anything different from Pat on this issue, because it has been a long time since he has had any larger interest for the country outside of serving his own party. Hold the hearing and decline to seat a Justice, but at least be intellectually honest about it and accept the consequences if the country decides it was inappropriate. Lay off the lame excuses and made up traditions for why you don’t want Obama to be the one to replace Scalia. The worse news for Republicans is that they will never get another ideologue like Scalia and jamming up this nomination is only certain to warren silly payback when the time comes

Marco Rubio has decided not to run for re-election to the Senate this year, does that not make him a lame duck Senator, who votes should be set aside so the voters of Florida have an opportunity to weigh in on legislative matters? Oh wait, he only votes sporadically, so I guess he is already deferring to his successor.

Article II, Section 2 does not lay out any specific procedure by which the Senate can refuse its consent. It does not indicate whether it must do so by taking a vote, or whether it can simply refuse to consider the president’s nominee at all. However, Article I, Section 5 states that “Each House may determine the rules of its proceedings.” That power includes the rules for considering judicial nominations, as well as all other Senate business. Thus, so long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so – just as it can refuse to vote on bills, treaties, or any other business that comes before it.

Senate Republicans only care about keeping their majority in the senate.

To be sure, what you say is true — except that there is another factor. Each Senator also wants to keep his own seat, and doesn’t want to get primaried by a tea-partier. So, even if an opportunity that is a good-for-the-country-compromise comes along, the take-no-prisoners crowd of Ted Cruz, Rush Limbaugh, Heritage Foundation, et al, will scream bloody murder if even mere hearings are held at all. (In fact, major RW think tanks such as Heritage are already demanding no hearings).

Quite a system we have, eh?

Question to Mr Buchanan — would you really be taking your position if say, somebody like Reagan were president and a vacancy arose at the start of his 8th year in office? Or is it a matter of the ends justifying the means?

Barack Obama,There are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether or not the justice is intellectually capable, and an all-around good guy. That once you get beyond intellect, and personal character, there should be no further question as to whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I am deeply troubled.

Mr.Buchanan, I respect your writing and opinions, but this is disgraceful. I consider you above the illogical behavior of the modern Republican Party and its self-destructive rejection of moderation and common sense. This article puts my confidence in doubt. The American people have been given the choice. They made it – to elect Obama as their nation’s President -twice – who is now called on to do his constitutional obligation. For being such lovers of the constitution, the GOP certainly twists, mangles and or disregards it to suit its needs. Not much love or respect there! Utterly shameful.

This article and the position it stakes out explains why so many Republicans are voting to blow the party apart rather than suffer more of the same inside-the-beltway posturing that serves no-one but the political class.

Trump is the rational response to the intrasigence of the aged and moribund GOP leadership.